look to claimant’s age at the time of the ALJ’s decision
How later courts described this case
- look to claimant’s age at the time of the ALJ’s decision
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
SANDRA WRIGHT, )
)
Plaintiff, )
)
v. )
) Case No. 1:18-CV-00291-SPM
)
)
ANDREW M. SAUL, 1 )
Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM AND ORDER
This is an action under 42 U.S.C. §§ 405(g) for judicial review of the final decision of
Defendant Andrew M. Saul, the Commissioner of Social Security, denying the application of
Plaintiff Sandra Wright (“Plaintiff”) for Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act, 42 U.S.C. §§ 401 et seq., (the “Act”). The parties consented to the jurisdiction
of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). (Doc. 8). Because the
Commissioner’s final decision is not supported by substantial evidence on the record as a whole,
the Court will reverse the decision and remand the matter for further proceedings.
I. BACKGROUND
On June 8, 2016, Plaintiff applied for DIB, alleging a disability onset date of October 12,
2015, and asserting disability due to sarcoidosis, irritable bowel syndrome, carpal tunnel
syndrome, bilateral tennis elbow, reverse cervical spinal fusion, lumbar degenerative disc disease,
1 Andrew M. Saul is now the Commissioner of Social Security and is automatically substituted as a
party pursuant to Fed. R. Civ. P. 25(d). See also § 205(g) of the Social Security Act, 42 U.S.C. § 405(g)
(action survives regardless of any change in person occupying the office of Commissioner of Social
Security).
and fibromyalgia. (Tr. 12, 46-47). Her application was initially denied on September 9, 2016. (Tr.
10). Plaintiff filed a Request for Hearing by Administrative Law Judge (“ALJ”). On May 8, 2018,
following a hearing at which Plaintiff, who was represented by counsel, testified, the ALJ found
Plaintiff was not under a “disability” as defined in the Act. (Tr. 10-19). Plaintiff filed a Request
for Review of Hearing Decision with the Social Security Administration’s (“SSA”) Appeals
Council. On October 16, 2018, the SSA’s Appeals Council denied her Request for Review. (Tr. 1-
4). Plaintiff has exhausted all administrative remedies, and the decision of the ALJ stands as the
final decision of the Commissioner of the Social Security Administration. 42 U.S.C. § 405(g); 20
C.F.R. § 416.1481; Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).
With regard to Plaintiff’s testimony, work history, and medical records, the Court accepts
the facts as provided by the parties in their respective statements of facts and responses. The Court
will address specific facts related to the issues raised by Plaintiff as needed in the discussion below.
II. STANDARD FOR DETERMINING DISABILITY UNDER THE ACT
To be eligible for benefits under the Social Security Act, a claimant must prove he or she
is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec’y of Health
& Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines as disabled
a person who is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
423(d)(1)(A); 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The
impairment must be “of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B).
To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. 20 C.F.R. §§ 404.1520(a), 416.920(a); 2 see also McCoy v. Astrue, 648 F.3d
605, 611 (8th Cir. 2011) (discussing the five-step process). At Step One, the Commissioner
determines whether the claimant is currently engaging in “substantial gainful activity”; if so, then
he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i); McCoy, 648 F.3d at 611. At Step Two, the
Commissioner determines whether the claimant has a severe impairment, which is “any
impairment or combination of impairments which significantly limits [the claimant’s] physical or
mental ability to do basic work activities;” if the claimant does not have a severe impairment, he
is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c); McCoy, 648 F.3d at 611. At Step
Three, the Commissioner evaluates whether the claimant’s impairment meets or equals one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “listings”). 20 C.F.R. §§
404.1520(a)(4)(iii); McCoy, 648 F.3d at 611. If the claimant has such an impairment, the
Commissioner will find the claimant disabled; if not, the Commissioner proceeds with the rest of
the five-step process. 20 C.F.R. §§ 404.1520(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the Commissioner must assess the claimant’s “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his or her] limitations.” Moore
v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20 C.F.R.
§§ 404.1520(e). At Step Four, the Commissioner determines whether the claimant can return to
his past relevant work, by comparing the claimant’s RFC with the physical and mental demands
of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f); McCoy, 648
2 All references throughout this opinion are to the version of the regulations that was in effect as of the
date of the ALJ’s decision.
F.3d at 611. If the claimant can perform his past relevant work, he is not disabled; if the claimant
cannot, the analysis proceeds to the next step. Id. At Step Five, the Commissioner considers the
claimant’s RFC, age, education, and work experience to determine whether the claimant can make
an adjustment to other work in the national economy; if the claimant cannot make an adjustment
to other work, the claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v); McCoy, 648 F.3d at 611.
Through Step Four, the burden remains with the claimant to prove that he is disabled.
Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that,
given the claimant’s RFC, age, education, and work experience, there are a significant number of
other jobs in the national economy that the claimant can perform. Id.; Brock v. Astrue, 674 F.3d
1062, 1064 (8th Cir. 2012).
III. THE ALJ’S DECISION
Applying the foregoing five-step analysis, the ALJ here found that Plaintiff has not
engaged in substantial gainful activity since the alleged onset date, October 12, 2015; that Plaintiff
has the severe impairments of lumbar degenerative disc disease, status post cervical spinal fusion,
status post bilateral carpal tunnel release, and fibromyalgia; and that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (Tr. 12-14). The ALJ found that
Plaintiff has the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b), except that
she can lift and carry only 20 pounds occasionally or 10 pounds frequently; can sit for six hours;
stand or walk for six hours out of an eight-hour workday; can only occasionally reach overhead
bilaterally, can never climb ladders, ropes, or scaffolds; can occasionally climb ramps or stairs;
and is limited to only frequent fingering and handling bilaterally. (Tr. 14-15). The ALJ found that
Plaintiff is unable to perform any of her past relevant work. (Tr. 18). However, relying on the
testimony of a vocational expert (“VE”), the ALJ found that Plaintiff would be able to perform
occupations including router (Dictionary of Occupational Titles (“DOT”) No. 222.587-038, light
exertion level, 76,400 jobs in the national economy), mail clerk (DOT No. 209.587-034, light
exertion level, 51,200 jobs in the national economy); and retail price marker (DOT No. 209.587-
034, light exertion level, 71,400 jobs in the national economy). (Tr. 19). The ALJ concluded that
Plaintiff had not been under a disability, as defined in the Act, from October 12, 2015, the alleged
onset date, through May 8, 2018, the date of her decision. (Tr. 19).
IV. STANDARD FOR JUDICIAL REVIEW
The decision of the Commissioner must be affirmed if it complies with the relevant legal
requirements and is supported by substantial evidence in the record as a whole. See 42 U.S.C.
§§ 405(g); 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 401 (1971); Pate-Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). “Substantial
evidence ‘is less than a preponderance, but enough that a reasonable mind might accept it as
adequate to support a conclusion.’” Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir. 2012)
(quoting Moore, 572 F.3d at 522). In determining whether substantial evidence supports the
Commissioner’s decision, the court considers both evidence that supports that decision and
evidence that detracts from that decision. Id. However, the court “‘do[es] not reweigh the evidence
presented to the ALJ, and [it] defer[s] to the ALJ’s determinations regarding the credibility of
testimony, as long as those determinations are supported by good reasons and substantial
evidence.’” Id. at 1064 (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)). “If,
after reviewing the record, the court finds it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the ALJ’s findings, the court must affirm the ALJ’s
decision.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting Goff v. Barnhart, 421 F.3d
785, 789 (8th Cir. 2005)).
V. DISCUSSION
Plaintiff argues that the ALJ reached a flawed RFC assessment because the ALJ (1) erred
by failing to consider her borderline age situation and thus classifying her as a “person closely
approaching advanced age” (ages 50-54) rather than a “person of advanced age” (ages 55 and
older); and (2) failed to properly weigh the opinion of a treating physician. (Doc. 11 at 1). The
Commissioner argues that the ALJ properly evaluated Plaintiff’s RFC, and based the RFC on
substantial evidence in the record as a whole.
A. Borderline Age Situation
As discussed supra, at Step Five of the evaluation process, the burden shifts to the
Commissioner to show that the claimant has the physical RFC to perform a significant number of
jobs in the national economy that are consistent with her impairments and vocational factors such
as age, education, and work experience. Phillips v. Astrue, 671 F.3d 699, 702 (8th Cir. 2012). The
Commissioner may refer to the Medical-Vocational Guidelines (“Guidelines”) to meet this burden.
Pearsall, 274 F.3d at 1219.
The Guidelines are a set of charts listing certain vocational profiles that warrant a finding
of disability or non-disability. 20 C.F.R. Pt. 404, Subpt. P, App. 2; McCoy v. Astrue, 648 F.3d 605,
613 (8th Cir. 2011). The Guidelines take into account only exertional limitations and certain
demographic features; they do not account for non-exertional limitations. McCoy, 648 F.3d at 613.
Where an ALJ’s findings of fact regarding a claimant’s vocational factors and RFC coincide with
all of the criteria of a particular Guideline rule, the rule directs a conclusion as to whether the
claimant is or is not disabled, 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(a); and the ALJ is to
reach the conclusion directed by the relevant Guideline — either disabled or not disabled. Phillips,
671 F.3d at 702.
Here, the ALJ found that Wright was limited to light work, was an individual closely
approaching advanced age, and had a limited education. Under the Guidelines, Rule 202.14,
such an individual is determined not disabled. See 20 C.F.R.§ 404.1568. However, if the ALJ
had classified Wrights’s age as “advanced,” Guideline Rule 202.06* would direct a finding of
disabled. See id.
Under the Guidelines, three age categories are specified: a younger person (under age
50), a person closely approaching advanced age (age 50-54), and a person of advanced age (age
55 or older). 20 C.F.R. § 416.963(c)-(e). Although the Commissioner is directed to use each of
the age categories that applies to a claimant during the period for which the Commissioner must
determine disability, the age categories are not to be applied mechanically in a “borderline
situation.” 20 C.F.R. § 416.963(b); Phillips, 671 F.3d at 702. Instead, if a claimant is “within a
few days to a few months’* of reaching an older age category, and applying the older category
3
Age Education Previous Work Decision
Experience
201.06 Advanced | High school Skilled or semi- Disabled
(sedentary | age graduate or more— | skilled—skills not
work) does not provide transferable
for direct entry into
skilled work
202.06 Advanced | High school Skilled or semi- Disabled
(light age graduate or more— | skilled—skills not
work) does not provide transferable
for direct entry into
skilled work
20 C.F.R. Pt. 404, Subpt. P, App. 2.
* Tn identifying whether an individual is “within a few days to a few months of a higher age category”
there are “no fixed guidelines . . . since such guidelines would themselves reflect a mechanical approach.”
would result in a determination that the claimant is disabled, the Commissioner will consider
whether to use the older age category after evaluating the overall impact of all the factors of the
claimant’s case. 20 C.F.R. § 416.963(b). Substantial evidence must support the Commissioner’s
age-category decision. Phillips, 671 F.3d at 707.
As noted above, the Commissioner must look to a claimant’s age for all periods relevant
to the disability determination. This period includes the date on which the ALJ renders the final
decision. Cf. Phillips, 671 F.3d at 703 (look to claimant’s age at the time of the ALJ’s decision);
Borderline Age, Soc. Sec. Admin., Office of Hearings and Appeals, Hearings, Appeals, and
Litigation Law Manual (HALLEX) I-2-2-42, 2016 WL 1167001, at *1 (last update Mar. 25, 2016)
(apply whenever age category changes within a few months after the date of adjudication). On the
date of the ALJ’s decision, Plaintiff was only three months and 15 days shy of her 55th birthday.
Because Wright was within a few months of attaining age 55 when the ALJ rendered her decision
in May 2018, and she would have been found disabled under the Guidelines if she were classified
in the higher age category, the ALJ was required to determine whether it would be more
appropriate to classify Wright in the higher category or to use her chronological age. HALLEX I-
2-2-42, 2016 WL 1167001, at *1. “The closer in time the claimant is to the next higher age
category, the more disadvantageous the claimant’s age.” Id. at *2.
In borderline age situations, the claimant must show that the higher age category is appropriate.
HALLEX I-2-2-42, 2016 WL 1167001, at *2. To achieve this, “the claimant must show that [other
relevant] factor(s) have a progressively more adverse impact on . . . her ability to adjust to other
SSR 83-10. However, a review of case law indicates that the consensus among federal courts seems to be
that six months from the older age category is the extent to which courts recognize a borderline age
situation. See Ash v. Colvin, No. 2:13-CV-47, 2014 WL 1806771, at *6-7, (N.D. W.Va. May 7, 2014)
(collecting cases indicating that six months or less from the next age category are routinely considered
borderline).
work as the period between [her] actual age and attainment of the next higher age category
lengthens.” Id.; see also Phillips, 671 F.3d at 702. Relevant factors that may impact the case include
having RFC limitations that adversely affect the claimant’s occupational base but do not
substantially erode it. Borderline Age, Program Operations Manual System (POMS) DI 25015.006E
(cited in HALLEX I-2-2-42, 2016 WL 1167001, at *2), available at
https://secure.ssa.gov>poms.nsf>Inx. Where a claimant establishes at least one additional
vocational adversity, the ALJ must consider applying the next age category and explain such
consideration in her written decision, noting the specific factors considered. Phillips, 671 F.3d at
704, 707; HALLEX I-2-2-42, 2016 WL 1167001, at *3.
As demonstrated by the ALJ’s RFC determination and as testified to by the vocational
expert, additional vocational adversities are present in this case, including Wright’s additional and
significant exertional limitations that adversely affect her occupational base. The ALJ
acknowledged that Wright’s severe impairments impeded her ability to perform all or substantially
all of the requirements of light work (Tr. 19). The ALJ was therefore required to consider whether
Wright should be classified as a person of advanced age. The ALJ’s decision here, however, is silent
as to whether such consideration was made. In the face of the ALJ’s silence on the matter, the
undersigned is unable to determine if the Commissioner considered whether Wright should be
moved to the higher age category. Accordingly, substantial evidence does not support the
Commissioner’s age-category decision. Phillips, 671 F.3d at 707 (and cases cited therein).
While the Commissioner concedes that this case is a borderline age situation under the
Regulations and that the ALJ failed to undergo the required analysis, he argues that remand is not
appropriate because the Appeals Council considered Wright’s argument when it denied review.
(Doc. 16 at 5). The Appeals Council, in their letter denying Wright’s request for review, stated
that, “We considered the borderline age situation in this case, and we found that the factors in the
record do not support application of the higher age category.” (Tr. 1.) The Commissioner argues
that this statement that the Appeals Council considered the borderline situation satisfies the
Commissioner’s obligation under the Regulations. This argument is misplaced. “If the Appeals
Council grants review, its decision (absent a remand to the ALJ) becomes the [Commissioner’s]
final agency action that is subject to judicial review.” Browning v. Sullivan, 958 F.2d 817, 822
(8th Cir. 1992) (emphasis added). Here, on the other hand, the Appeals Council considered
Wright’s argument and then denied review. This Court’s statutory jurisdiction is confined to
review of the “final decision of the Commissioner.” 42 U.S.C. § 405(g). Because the ALJ’s
decision is the “final decision of the Commissioner,” this Court may only review that decision, not
the Appeals Council’s non-final administrative decision to deny review. Browning v. Sullivan, 958
F.2d 817, 822 (8th Cir. 1992); 20 C.F.R. § 416.1481. See also Woods v. Saul, Case No. 4:18-CV-
1431 CDP, 2019 WL 4169356, at *4 (E.D. Mo. Sept. 3, 2019).
The Commissioner directs the Court’s attention to a federal district court decision from the
Southern District of Alabama to support its argument that it was sufficient for the Appeals Council
to address Plaintiff’s borderline age situation. See Doc. 16 at 6, citing Pettway v. Astrue, No. CA
10-127-C, 2010 WL 3842365 (S.D. Ala. Sept. 27, 2010). The Court finds the Pettway case
factually distinguishable and inapposite. In Pettway, the federal district court did indeed review
and find adequate the Appeals Council’s determination that the claimant’s borderline age situation
did not require evaluating her claim under the higher age category. However, unlike here, in
Pettway, the court was faced with a situation where the Appeals Council had granted the claimant’s
request for review and fully analyzed the borderline age issue. Pettway, at *2-3. Here, of course,
the Appeals Council denied review, and this Court is left to review the ALJ’s decision, which is
clearly inadequate on this issue.
In the circumstances of this case, the ALJ’s complete failure to address Wright’s
borderline age situation and consider whether Wright should be placed in the higher age
category of a person of advanced age requires remand. Because substantial evidence does not
support the ALJ’s decision to classify Wright as an individual closely approaching advanced
age at the time of the decision, and classification to a higher age category would result in a
finding of disabled, this Court will remand the matter to the Commissioner for further
proceedings.
Because this matter will be remanded to the Commissioner for further proceedings on
the borderline age situation, the undersigned need not reach Plaintiff's second argument
regarding whether the ALJ properly weighed the opinion of her treating physician.
V. CONCLUSION
For all the above stated reasons, the Court finds that substantial evidence does not support
the Commissioner’s classification of Wright as an individual closely approaching advanced age
rather than one of advanced age in her consideration of whether Wright meets the disability criteria
of the Medical- Vocational Guidelines.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is
REVERSED and that this case is REMANDED under 42 U.S.C. § 1383(c)(3) and Sentence Four
of 42 U.S.C. §405(g) for reconsideration and further proceedings consistent with this opinion.
A Inj 0)
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 10th day of March, 2020.
11